EXHIBIT 10.3
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AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
Amendment No. 1 (the "AMENDMENT"), dated as of April 3, 2002, to the
AGREEMENT AND PLAN OF MERGER (the "AGREEMENT") dated as of December 4, 2001 by
and between Change Technology Partners, Inc., a Delaware corporation ("CTPI"),
and Franklin Capital Corporation, a Delaware corporation ("FRANKLIN"). All
capitalized terms which are used but not otherwise defined herein shall have the
meanings specified to such terms in the Agreement.
WHEREAS, CTPI and Franklin are parties to the Agreement pursuant to
which CTPI shall be merged with and into Franklin (the "MERGER"); and
WHEREAS, CTPI and Franklin have agreed that CTPI shall make a loan to
Excelsior Radio Networks, Inc., a Delaware corporation and a majority owned
subsidiary of Franklin ("EXCELSIOR"), in an amount not to exceed $4,708,200 and
a promissory note for such amount shall be issued to Change from Excelsior (the
"NOTE"); and
WHEREAS, CTPI and Franklin desire to amend a condition precedent to the
Merger that CTPI have $9,000,000 cash on hand in cash and cash equivalent
investments at the Closing to reflect that such $9,000,000 amount shall be
reduced by the principal amount outstanding on the Note at the Closing; and
WHEREAS, Franklin desires to consent to the loan of $4,708,200 from
CTPI to Franklin as evidenced by the Note so that such loan and the transactions
related thereto do not violate Section 5.1 of the Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
1. SECTION 6.2(D). Section 6.2(d) of the Agreement is hereby
amended and restated in its entirety as follows:
CASH ON HAND. At the Closing, CTPI shall have cash or cash equivalent
investments on hand in an amount equal to not less than the excess of $9,000,000
over the sum of (i) the aggregate amount paid in cash by CTPI to Franklin from
and after the date of this Agreement to purchase any capital stock of Franklin
or any other properties or assets of Franklin, (ii) the aggregate principal
outstanding on the promissory note (the "APRIL 2002 NOTE") dated April 3, 2002
issued to CTPI by Excelsior Radio Networks, Inc., a Delaware corporation and a
majority owned subsidiary of Franklin and (iii) an amount equal to $260,000 for
each period of 30 days (and a ratable proportion thereof for any period of less
than 30 days) from the date of this Agreement to the Closing Date. CTPI shall
deliver to Franklin a certificate, dated the Closing Date, signed by a senior
executive officer of CTPI, to the effect that the condition contained in this
Section 6.2(d) has been satisfied.
2. CONSENT OF FRANKLIN TO LOAN. Franklin hereby consents to
CTPI's loan to Excelsior, in an amount not to exceed $4,708,200, as evidenced by
the April 2002 Note and agrees that such loan and the transactions related
thereto do not violate Section 5.1 of the Agreement.
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3. MISCELLANEOUS.
(a) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
(b) GOVERNING LAW. This Amendment shall be governed by
and construed in accordance with the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed and delivered by their respective officers hereunto
duly authorized on the first day above written.
CHANGE TECHNOLOGY PARTNERS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: President and Chief Executive Officer
FRANKLIN CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
